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Play fair: the evolution of copyright

Bill Thompson
15 October 2002

How far have we come in our debate, which is now drawing to a close?

We started by asking whether copyright law – and intellectual property rights generally – is becoming an obstacle to the freedom that individuals need rather than a protection against the exploitation of creative works by those who will not pay. We end by seeking to preserve the copyright settlement, extending old law to cover new circumstances by preserving core principles – in this case the idea of ‘fair dealing’ or ‘fair use’ and the preservation of the intellectual ‘dot.commons’ where ideas and their expression can be shared and enjoyed freely.

We have travelled far to get here. Through our main features and the contributions to the debate we have explored the limits of law and the capabilities of technologies. We have heard arguments against legal restriction (Eric Raymond) and in favour of a new ethical approach (Siva Vaidhyanathan) grounded in cynicism. We have dissected the current degree of record industry control (Michael Fraase) and seen the impact new laws can have on creative practice (Nikhil Gyan). We have heard from those whose creative works are copied over the Internet (Janis Ian) and those who own most of the world’s copyrights (Jack Valenti). We have even been lectured on the dangers to the dot.commons and the free exchange of ideas (Jason Toynbee) posed by the replacement of copyright law with technical means of protecting materials.

Since May, when we began, the world outside has not stood still, holding its collective breath and waiting for the outcome of our deliberations. In the UK the Patent Office has issued its recommendations on how the European Union Copyright Directive should be written into national law, provoking howls of outrage from those who see the new law as more restrictive than the US Digital Millennium Copyright Act (DMCA) (Julian Midgely). As I write thousands of people in the UK are being encouraged to download music for free – legally, as part of Digital Download Day, an attempt to market licensed music services and persuade people to stop sharing music files.

Microsoft has announced details of its Palladium trusted operating system and Intel has shown how it would implement digital rights management in processor hardware. Trusted computer systems are widely expected to be available in two to three years, carrying with them new ways to control online activity.

Meanwhile, the US Congress is awash with proposed legislation that would affect copyright, most notably Howard Berman’s bill to legalise hacking against peer-to-peer networks that share unlicensed content, and Rick Boucher and John Doolittle’s Digital Media Consumers’ Rights Act which would override the DMCA and assert full fair-use rights in digital content. Napster is dead (although still twitching) and is about to be turned into a movie screenplay. KaZaA has new software, but carries with it spyware and advertising software that many users find more costly than simply paying for downloads. And new P2P applications are proposed, developed, released, injuncted and investigated every day.

Since May – and perhaps in part because of our efforts – the debate has started to shift in ways that give hope to those of us who worry about the damage that the privatisation of copyright will cause to the social good that comes from the wide availability of artistic, intellectual and scientific works.

As Jason Toynbee asserts, ‘the libertarian alternative – just keep hacking – is simply not going to work.’ Fortunately, this applies just as much to those who want to assert complete control over digital materials as to those who want all information to be freely available: neither Richard Stallman nor Jack Valenti can win the technical game they are currently playing.

This means paying attention to the legislators who, despite Eric Raymond’s protestations, do sometimes do good in the world. The discussion is finally moving away from details of the technologies and the precise wording of new laws to the broader issues. Instead of being about specific technologies – such as MP3 and Napster – or specific industries – the music and movie conglomerates who dominate Western entertainment – it is more about principles and legal frameworks.

Some of the legal moves being made recently, such as Boucher’s bill, reflect this by trying to unpick previous settlements and allow new choices to be made; others are asking wider questions, similar to those we have been addressing.

It is interesting to note that nobody is suggesting tearing up the Berne Convention and redefining copyright for the digital age, although when we began this debate it was one of the positions we outlined. Perhaps this shows the maturity of the discussion, where the temptation to pass new laws that specifically deal with digital technology – like the DMCA itself – is seen as rather naïve and simplistic, when existing legal frameworks can be effectively applied even online.

The centre of the discussion is the idea of fair dealing, or fair use in US terminology. What are the limits of the control that a copyright owner should have over the uses made of a work? How far should the use made of copyright material have to be licensed? How long should copyright last?

The situation continues to change. At the moment there is a distinct possibility that the US Supreme Court will strike down the 1998 Copyright Term Extension Act, which extended the term of copyright in the US by twenty years, thereby protecting Walt Disney’s Mickey Mouse from entering the public domain and – according to opponents of the legislation – going beyond what the US Constitution allows when it gave Congress the power ‘to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’

If this happens – and the oral arguments are scheduled to begin on 9 October, when the court’s new term begins – then a number of issues will arise. First, the US will need to decide whether to attempt to comply with its international treaty obligations which require it to harmonise copyright periods with other nations.

Secondly, and more significantly, the question of the importance of the public domain – the intellectual commons – will be brought to the fore. This, in turn, may lead to more serious and considered analysis of proposals such as that which would require digital rights management features in consumer electronics devices. This debate could provide an opportunity to revisit the copyright settlement, in the US and elsewhere.

As Richard Stallman argues, copyright is a bargain between the people and the creator – or the person who buys the copyright from the creator – that is supposed to serve the best legitimate interests of both parties. It is there to serve the public good – either entirely economically (on the US model) or morally and economically (as in the Berne Convention approach, which recognises authors rights as well as economic rights).

As the debate moves on from this site, we seem to have reached the point where the discussion focuses on the nature of this bargain, rather than simply being an intemperate argument between land-grabbing copyright owners and file-sharing hackers intent on ripping CDs. To me, this feels like progress.

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